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Stroud v. Tilton

4 Abb. Ct. App. 324 Court N.Y. English

Delivered by Porter, J.

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p. 324
STROUD v. TILTON.
September, 1866.

Headnote

Witnesses are competent to prove the general correctness of plaintiff’s day book who have settled their accounts by his ledger, which was posted from the day book. '
Books of account are admissible in evidence though the items contained in them were noted on a slate in the first instance, if such items were transcribed on the books from day to day in the usual course of business.[1]
The right of a party to use his books as evidence is not abrogated by the statute authorizing him to testify asa witness in his own behalf.
William Stroud sued David Tilton, in the supreme court, to recover, among other things, a balance for work and materials. Plaintiff was an iron-founder and machinist; and the work was the making and repairing of guns.
On the trial, plaintiff, who kept regular books of account, the correctness of which he proved by those who had dealt and settled with him by them, offered his books in evidence. The method of keeping the books was shown to be as follows:
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the entries in question were in the handwriting of plaintiff^ son, his book-keeper, who died before the trial. The work done was entered each day, on a slate, by those doing it, or those under whose eye it was done, in the shop and the foundry respectively; the book-keeper entered these charges from day to day in the books and effaced them from the slate.
Plaintiff testified that the books contained his account with defendant; that he believed the entries to be correct; that the items in question were correctly and fairly entered as to price, hours and materials; that he knew the details when the 'charges were made but could not remember them now without the books.
It appeared also that the prices were reasonable, the work tod materials of the best quality, and one gun was delivered to defendant, with which he expressed his entire satisfaction, and the work on the other gun was continued until he stopped it. The only question made in this court was on the admissibility of the books.
Richard M. Harrington, for defendant, appellant.
Edwin T. Rice, for plaintiff, respondent;
Cited Brewster v. Doane, 2 Hill, 537 ; Halliday v. Martinet, 20 Johns. 168 ; Pritt v. Fairclough, 3 Campb. 305; Pitman v. Maddox, 3 Salk. 690; Vosburgh v. Thayer, 12 Johns. 461 .

By the Court.

The books of the plaintiff

were properly received in evidence. It wás proved that the entries were made in the usual course of business, and that the clerk who made them was dead. The general correctness of the books was shown by those who had dealt with the plaintiff ; and the accuracy of the charges in question was verified by his own oath. Part of the property had been delivered to the defendant, and the entire work was done under the supervision of his agent. No further proof was necessary to justify the introduction of the books. Merrill v. Ithaca & Oswego R. R. Co., 16 Wend. 586 , 694; Brewster v. Doane, 2 Hill, 537 .

There is no force in the objection that the witnesses who proved the correctness of the books settled their accounts by

p. 326
the ledger, without examination of the original entries. If the charges as posted and paid were honest, it is to he presumed that they were correct as entered in the day-books.

It appeared that the items of the plaintiff’s account were noted, in the first instance, on slates in 'the various workrooms; but this constitutes no objection, as they were transcribed on the books from day to day in the usual course of business. Sickles v. Mather, 20 Wend. 72 ; Davison v. Powell, 16 How. Pr. 467 .

The statute authorising parties to testify in their own behalf has not deprived them of the right to introduce their books of .account in evidence. Tomlinson v. Borst, 30 Barb. 42 .

The judgment should be affirmed.

All the judges concurred.

Judgment affirmed, with costs.

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